SUPREME COURT OF INDIA

Before:- R.C. Lahoti and Brijesh Kumar, JJ

Civil Appeal No. 3727 of 2002 (Arising out of S.L.P. (Civil) 12910 of 2000). D/d. 09.7.2002.

Gulab Rasul Jamadar & Ors. - Appellants

Versus

Papa @ Aba Bapu Jamadar (D) by Lrs. & Ors. - Respondents

Civil Procedure Code, 1908, Section 100 - Second appeal dismissed by High Court in limine in view of forming an opinion that no substantial question of law worth being heard under Section 100 arose for consideration - However, Supreme Court after hearing the counsels and perusing the material on record forming a prima facie opinion that some questions of law do arise as substantial questions of law - Matter remaded to High Court - High Court shall have the liberty of framing additional questions of law, if any.

[Para ]

ORDER

R.C. Lahoti, J. - Leave granted.

2. Second appeal has been dismissed by the High Court in limine as it formed an opinion that no substantial question of law worth being heard under Section 100 of the Civil Procedure Code arose for consideration. However, having heard the learned counsel for the parties and having perused the material on record we are persuaded to form a prima facie opinion that the following questions of law do arise as substantial questions of law on which the appeal ought to have been heard by the High Court: .

(a) Would litigation for partition between two branches of family decided on the peculiar facts of the case, in which both the petitioners as well as the original defendant represented a common branch, act as res judicata in a suit for partition between the petitioners and the original defendant.

(b) Does the abolition of inam and regrant of suit land to the original defendant not entitle the petitioners to claim partition in the suit land.

(c) Can inam land which is impartible by custom be said to be the separate or exclusive property of the holder of the estate. In view of what is stated hereinabove the appeal is allowed. The order of the High Court dismissing the appeal in limine is set aside. The second appeal shall be restored on the file of the High Court to be heard on the above said questions of law.

3. The High Court shall have the liberty of framing additional questions of law, if any. The respondents in the High Court shall have the liberty of arguing, as contemplated by sub-Section (5) of Section 100 of Civil Procedure Code, that the case does not involve such questions.

4. The appeal stands disposed of in the terms abovesaid.

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